Nguyen v. STATE HEALTH MED. QUALITY ASSUR.

• Decision Date: 23 August 2001
• Docket Number: No. 68994-6.,68994-6.
• Citation: 144 Wash.2d 516,29 P.3d 689
• Court: Washington Supreme Court
• Parties: Bang D. NGUYEN, Petitioner, v. STATE of Washington, DEPARTMENT of HEALTH MEDICAL QUALITY ASSURANCE COMMISSION, Respondent.

29 P.3d 689

144 Wash.2d 516

Bang D. NGUYEN, Petitioner, v. STATE of Washington, DEPARTMENT of HEALTH MEDICAL QUALITY ASSURANCE COMMISSION, Respondent.

No. 68994-6.

Supreme Court of Washington, En Banc.

Argued November 16, 2000.

Decided August 23, 2001.

Ralph A. Alfieri, Seattle, for Petitioner.

David Hankins, Assistant Attorney General's Office, Olympia, for Respondent.

SANDERS, J.

The issue here is whether the Due Process Clause of the United States Constitution requires proof by clear and convincing evidence in a medical disciplinary proceeding. We hold due process requires no less, reverse and remand.

Dr. Bang Duy Nguyen¹ is a Seattle medical doctor who began his private medical practice in 1984. From that time until September 1997 he was licensed to practice medicine by the State of Washington. In 1989 his license was suspended because the Medical Disciplinary Board (Board)² found his practice had fallen below acceptable professional standards. However, the suspension was stayed on several conditions, one of which being that Dr. Nguyen participate in a preceptor program under the tutelage of Dr. Burdick.

In 1991 Dr. Burdick recommended Dr. Nguyen's monitoring be reduced. The Board agreed Dr. Nguyen had made significant progress and accordingly reduced the level of preceptor review. Dr. Burdick continued to monitor Dr. Nguyen's practice until January 1996, even though he thought the charges against Dr. Nguyen were trivial and marginal.

In November 1994 the Medical Quality Assurance Commission (Commission) proffered a Statement of Charges against Dr. Nguyen. The hearing on those charges was postponed when the Commission issued an agreed order for him to be assessed by the Colorado Personalized Education for Physicians program (CPEP). During this time his license remained in effect.

An Amended Statement of Charges was issued against Dr. Nguyen by the Washington State Department of Health (Department) in October 1996 based in part on the CPEP evaluation. The Department further alleged Dr. Nguyen failed to comply with the 1989 Stay of Suspension agreement and rendered unprofessional care in the treatment of 22 patients. In December 1996 the Commission issued a Summary Suspension of Dr. Nguyen's license based on charges separate and apart from those which were currently pending. These new charges alleged Dr. Nguyen engaged in sexual misconduct with three of his patients.

On February 13, 1997 a hearing was held to set the limits of the Summary Suspension. The suspension was stayed pending a hearing on the merits of the case. All charges against Dr. Nguyen were then consolidated. A six day hearing was held in which Dr. Nguyen was represented by counsel. At the hearing the Commission found by a mere preponderance Dr. Nguyen had inappropriate sexual contact with three of his patients and was therefore unfit to practice medicine. His license was indefinitely revoked and he was prohibited from seeking relicensure for five years.

Dr. Nguyen sought review of the Commission's ruling in Superior Court, but the ruling was affirmed. Bang Nguyen v. Dep't of Health, Med. Quality Assurance Comm'n, 99 Wash.App. 96, 100, 994 P.2d 216 (1999). He then sought review in the Court of Appeals for Division One, and again the Commission's ruling was affirmed. Id. We accepted review to determine whether the Commission applied the correct standard of proof when it decided the case on a mere preponderance.

The Uniform Disciplinary Act (UDA), which establishes the licensure and disciplinary procedures for health care professionals, gives the Department the authority to adopt rules necessary for carrying out its disciplinary functions. RCW 18.130.050(1). To that end the Department has adopted WAC 246-10-606 which states in part: "Except as otherwise provided by statute, the burden in all cases is a preponderance of the evidence."

Dr. Nguyen asserts he was denied his constitutional right to due process and equal protection when the Commission revoked his license to practice medicine based on a hearing which employed a mere preponderance of the evidence standard of proof. The UDA, RCW 18.130.100, states all hearings before the disciplinary authority are governed by the Administrative Procedure Act (APA). Under the APA, a reviewing court may grant relief from an administrative agency's ruling if, among other things, the order is in violation of the constitution either on its face or as applied. RCW 34.05.570(3). Consequently, our review of Dr. Nguyen's claim is appropriate and one upon which relief may be granted.

ANALYSIS

A professional disciplinary proceeding subjects a medical doctor to grave concerns which include the potential loss of patients, diminished reputation, and professional dishonor. State precedent from other jurisdictions is divided.³ However, reason and applicable Supreme Court precedent dictate these grave concerns merit more than the minimal proof required to protect one from the risk of a mere, yet erroneous, money judgment.

We must not confuse the constitutional right to be applied with the interest to be protected. The Due Process Clause of the Fourteenth Amendment to the United States Constitution precludes states from depriving any person of "life, liberty, or property, without due process of law." The "right" is due process, Dr. Nguyen's interest is his property,⁴ his liberty,⁵ or both. At its heart this case concerns the process due an accused physician by the state before it may deprive him his interest in property and liberty represented by his professional license. "Procedural due process imposes constraints on governmental decisions which deprive individuals of `liberty' or `property' interests within the meaning of the Due Process Clause of the Fifth or Fourteenth Amendment." Mathews v. Eldridge, 424 U.S. 319, 332, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). A medical license is a constitutionally protected property interest which must be afforded due process. Painter v. Abels, 998 P.2d 931, 940 (Wyo.2000); Johnson v. Bd. of Governors, 913 P.2d 1339, 1345 (Okla.1996); see also Wash. State Med. Disciplinary Bd. v. Johnston, 99 Wash.2d 466, 474, 663 P.2d 457 (1983) ("A professional license revocation proceeding has been determined to be `quasi-criminal' in nature and, accordingly, entitled to the protections of due process.").

Our Constitution mandates that level of legal process due to reflect "respect enforced by law for that feeling of just treatment which has been evolved through centuries of Anglo-American constitutional history and civilization." Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 162, 71 S.Ct. 624, 95 L.Ed. 817 (1951) (Frankfurter, J., concurring). "[I]n the development of our liberty insistence upon procedural regularity has been a large factor. Respect for law will not be advanced by resort, in its enforcement, to means which shock the common man's sense of decency and fair play." Burdeau v. McDowell, 256 U.S. 465, 477, 41 S.Ct. 574, 65 L.Ed. 1048 (1921) (Brandeis, J., dissenting).

Representing a profound attitude of fairness between man and man, and more particularly between the individual and government, "due process" is compounded of history, reason, the past course of decisions, and stout confidence in the strength of the democratic faith which we profess.... It is a delicate process of adjustment inescapably involving the exercise of judgment by those whom the Constitution entrusted with the unfolding of the process.

Joint Anti-Fascist Refugee Comm., 341 U.S. at 162-63, 71 S.Ct. 624 (Frankfurter, J., concurring).

The minimum evidentiary standard due a medical doctor in a professional disciplinary proceeding is most importantly based upon the nature of the interest at stake—the interest which is subject to erroneous deprivation if a mistake is made. The more important the interest, the less tolerant we are as a civilized society that it be erroneously deprived.

A process satisfies minimum constitutional requisites inherently due when it provides adequate safeguards to the citizen confronted by an action instigated against him by the state. Primary among these safeguards is the standard of proof. "The function of a standard of proof ... is to `instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication.'" Addington v. Texas, 441 U.S. 418, 423, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979) (quoting In re Winship, 397 U.S. 358, 370, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) (Harlan, J., concurring)).

Addington holds it is the nature and importance of the interest subject to the potentially erroneous deprivation which defines the constitutionally minimum standard of proof. That standard allocates the risk of error between the litigants: it is indicative of the relative importance attached to the ultimate decision. Addington, 441 U.S. at 423, 99 S.Ct. 1804. Thus, the more important the decision, the higher the burden of proof.

At the low end of the spectrum is the civil case involving a monetary dispute between private parties "[s]ince society has a minimal concern with the outcome of such private suits, plaintiff's burden of proof is a mere preponderance of the evidence. The litigants thus share the risk of error in roughly equal fashion." Id. At the high end is the criminal case where the interests of the defendant are of such magnitude that the beyond-a-reasonable-doubt standard of proof is "designed to exclude as nearly as possible the likelihood of an erroneous judgment." Id. Addington also recognized the constitutional necessity for an intermediate standard of proof employing some combination of the terms "clear," "cogent," "unequivocal," and/or "convincing," in circumstances where the interest is greater than a mere money judgment but less than a generic criminal proceeding. Id. at 424, 99 S.Ct. 1804. It recognized "some jurisdictions accordingly reduce the...